Raguraman (Migration) - [2021] AATA 52

Raguraman (Migration) [2021] AATA 52 (11 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Suganiya Raguraman
Ms Tanvi Raguraman
CASE NUMBER:  2003100
HOME AFFAIRS REFERENCE(S):          BCC2017/4638010
MEMBER:Antonio Dronjic
DATE:11 January 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 189 – Skilled – Independent visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 11 January 2021 at 9:45am

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled - Independent) – bogus document submitted in support of application – birth certificate – applicant born in India to Sri Lankan father and Indian mother living in Sri Lanka – Sri Lankan birth certificate issued at birth – Indian birth certificate issued by court order when applicant an adult and submitted with application – integrity checks found Sri Lankan certificate genuine but unable to confirm genuineness of Indian certificate – confirmation of genuineness of Indian certificate and explanation for Sri Lankan certificate provided to tribunal – decision under review set aside for first applicant, no jurisdiction for second applicant
LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(a), 103, 107, 109(1), 140(1)
CASE
Saleem v MRT [2004] FCA 234
SZEEM v MIMIA [2005] FMCA 27

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 February 2020 to cancel the first named applicant’s Subclass 189 – Skilled – Independent visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with s.103 of the Act. The delegate found that, in support of her application for a Subclass 189 visa, the applicant submitted a bogus document, namely a translated copy of her Indian birth certificate issued on 20 March 2009 by Tiruchirappalli City Corporation. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.
On 18 February 2020, the applicant applied to this Tribunal for a review of the delegate’s visa cancellation decision. A copy of the delegate’s decision record accompanied the applicant’s application for the review.
On 18 December 2020, the Tribunal wrote to the applicant advising her that it had considered the material before it and was unable to make a favourable decision on this material alone and invited…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Raguraman (Migration)

Details

AGLC: Raguraman (Migration) [2021] AATA 52
Case: [2021] AATA 52
Decision Date: 11 January 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Subclass 189 (Skilled - Independent) visa granted to Ms. Suganiya Raguraman. The dispute arose from the Department of Home Affairs' suspicion that Ms. Raguraman had submitted a bogus document, specifically an Indian birth certificate, in support of her visa application. The Department's integrity checks found a Sri Lankan birth certificate to be genuine but could not confirm the genuineness of the Indian certificate, as a required court order for its late registration could not be located.

The primary legal issue before the Tribunal was whether Ms. Raguraman had failed to comply with section 103 of the *Migration Act 1958* by providing a bogus document, and if so, whether the Minister's power to cancel her visa under section 109 had been validly engaged. This required the Tribunal to determine if the notice of intention to consider cancellation issued under section 107 of the Act had complied with its statutory requirements and if the non-compliance particularised in that notice had been established.

The Tribunal reasoned that the cancellation power under section 109 of the Act is contingent on the Minister issuing a valid notice under section 107, which must provide particulars of the alleged non-compliance. In this instance, the Tribunal was satisfied that the notice issued to Ms. Raguraman complied with section 107. However, the Tribunal found that Ms. Raguraman had not committed the non-compliance as particularised in the notice. While the Department could not locate the court order for the late registration of the Indian birth certificate, Ms. Raguraman provided explanations and supporting statutory declarations from her parents and neighbours, asserting her birth in India. Crucially, she stated she only became aware of the Sri Lankan birth certificate after receiving the notice of intention to cancel. The Tribunal concluded that, based on the evidence and explanations provided, there was no non-compliance by Ms. Raguraman in the manner described in the section 107 notice.

Consequently, the Tribunal set aside the decision to cancel Ms. Raguraman's visa and substituted a decision not to cancel it. The Tribunal also noted that it had no jurisdiction with respect to the other applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.CONSIDERATION OF CLAIMS AND EVIDENCE Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision and marked as Attachment C. Did the notice comply with the requirements in s.107? In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.Was there non-compliance as described in the s.107 notice? The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. It is not open to the decision-maker (including the Tribunal on review) to decide whether there was a non-compliance other than that particularised under s.107(1)(a) in the s.107 notice.[1] The Tribunal is further restricted to consideration of whether there was non‑compliance in the manner particularised in the s.107 notice.[2][1] Saleem v MRT [2004] FCA 234 (Allsop J, 30 March 2004).[2] SZEEM v MIMIA [2005] FMCA 27 (Smith FM, 27 January 2005). The following non-compliance with s.103 of the Act was identified and particularised in the s.107 notice:·On 11 July 2014, the applicant applied for a Subclass 189 visa. As part of this application, the applicant submitted a copy of her Indian birth certificate (translated version) issued on 20 March 2009 by Tiruchirappalli City Corporation, Tiruchirappalli District, Tamil Nadu, India. On 27 October 2014, the applicant, her former husband and her daughter were granted a Subclass 189 visa.·On 5 June 2017, the Department received information that the visa holder was born in Colombo, Sri Lanka, and not in India, as claimed in her visa application. The Department obtained document number 2415 which purports to be an English language translation of the contents of a birth registration entry filed in the Thimbirigasyaya Divisional Secretariat, Colombo District, Sri Lanka. On 5 September 2017, the Department made enquiries with officials in Colombo, Sri Lanka, to verify the authenticity of this document. The outcome of integrity checks confirmed that birth certificate 2415 is a genuine document.·In July and August 2019, the Department undertook integrity checks regarding the visa holder’s Indian birth certificate which was provided with her visa application. The Department received information from Tiruchirappalli City Corporation that when a birth within their jurisdiction is not registered within 21 days, the applicant for registration is required to attend court and obtain a Court Order to the Corporation to register the child’s birth. While this purported birth was registered based on Court Order CMP No. 5624/2007 – Judicial Magistrate III Date: 12/09/2007, the court was unable to locate this Court Order.·Based on the findings that there was a valid Sri Lankan birth certificate and because the Indian court was unable to locate the Order at the time the Department made enquiries, the delegate formed a reasonable suspicion that the applicant’s Indian birth certificate purports to have been but was not validly issued by Tiruchirappalli City Corporation. The delegate found that the applicant’s birth certificate is a bogus document as defined in s.5 of the Act as it purports to have been but was not validly issued in respect of the visa holder by Tiruchirappalli City Corporation.·On 2 December 2019, a Notice of Intention to Consider Cancellation (NOICC) was issued to the applicant. The applicant responded to the NOICC on 12 December 2019 and 7 January 2020. In her statutory declaration of 6 January 2020, she stated that she only become aware of the existence of the Sri Lankan birth certificate after receiving the NOICC. The applicant denied that she submitted a bogus document to the Department and provided an explanation as to how and why the Sri Lankan birth certificate was obtained by her father in July 1978. She reiterated that she was born in India and in support of this claim she submitted several statutory declarations, including declarations from her parents and neighbours who were present and assisted the applicant’s mother at the time she gave birth to the applicant at her family home.

Decision

Reasons for decision

For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 189 – Skilled – Independent visa. The Tribunal has no jurisdiction with respect to the other applicant.Antonio DronjicMemberDocument List – Attachment A1.On 22 December 2020 (and on 4 January 2021), the Tribunal received the following documents:·Notice of cancellation under section 109 of the Migration Act 1958 from the Department of Home Affairs to Ms Suganiya Raguraman (13/2/2020)·Republic of India passport of Suganiya Raguraman (date of issue: 9/2/2012)·Republic of India passport of Suhanya Periyannan (date of issue: 7/11/2001)·Republic of India passport of Suganiya Periyannan (date of issue: 21/11/2005)·Passport of Suhanya Periyannan (date of issue: 21/12/1994)·Notice of intention to consider cancellation under section 109 of the Migration Act 1958 from the Department of Home Affairs to Ms Suganiya Raguraman (2/12/2019), including attachments:oTiruchirappalli City Corporation, Tiruchirappalli District, Tamil Nadu, India translated birth certificate of P. Suganiya (date of registration: 21/9/2007)oSri Lankan Register of Births translated birth certificate of Periyannan Suganiya (1/2/2017)oEnvelope addressed to Ms Suganiya Raguraman·Letter to John (Visa Cancellation Officer, NSW Visa Cancellation Unit, General Cancellations Network, Department of Home Affairs) from Raveendran Selvadurai (Ravi James Lawyers) (16/12/2019)·Letter to John (Visa Cancellation Officer, NSW Visa Cancellation Unit, General Cancellations Network, Department of Home Affairs) from Raveendran Selvadurai (Ravi James Lawyers) (6/1/2020)·Statutory Declaration of Suganiya Raguraman (6/1/2020)·International Statement/Affidavit of Nadesapillai Periyannan (26/12/2019)·International Statement/Affidavit of Periyannan Maheswary (28/12/2019)·Cover letter/submission from Raveendran Selvadurai (Ravi James Lawyers) to the Tribunal (22/12/2020)·International Affidavit of Amaravathy Thangaraj Pillai (27/12/2019)·International Affidavit of P. Sumathi (2/1/2020)·International Affidavit of K. Rengan (30/12/2019)·Government of India identity document of Suganiya Raguraman·Seethalakshmi Ramaswami (Evening) College Transfer Certificate of P. Suganiya (date of admission: 5/6/1995)·Cauvery College for Women Transfer Certificate of P. Suganiya (25/5/1995)·Translated Court documents, including Orders, from Tiruchirappalli Judicial Court. The translator’s certification was attached to this document·Court document (in English) before the Hon’ble Judicial Magistrate No. III Tiruchirappalli·Court document (in a language other than English) before the Hon’ble Judicial Magistrate No. III Tiruchirappalli ·Document (in a language other than English)·Document (in a language other than English)·Postal documents·Newspaper clippings (in a language other than English)·Document (in a language other than English)·‘Acknowledgement of Applications – Ms Suganiya Raguraman and Ms Tanvi Raguraman’ from the Administrative Appeals Tribunal to Mr Raveendran Selvadurai (21/2/2020).Document List – Attachment B1.On 31 December 2020, the Tribunal received the following documents by post:·Cover letter/submissions to Member A Dronjic from Raveendran Selvadurai (Ravi James Lawyers) (29/12/2020)·Translated Court documents, including Orders, from Tiruchirappalli Judicial Court. The translator’s certification was attached to this document·Court document (in English) before the Hon’ble Judicial Magistrate No. III Tiruchirappalli ·Court document (in a language other than English) before the Hon’ble Judicial Magistrate No. III Tiruchirappalli ·Document (in a language other than English)·Document (in a language other than English)·Postal documents·Newspaper clippings (in a language other than English)·Document (in a language other than English)·Court Order, Judicial Magistrate No. 3 Court Tiruchirappalli, Presence: Mr. V. John Mino, BA, BL, Judicial Magistrate No. 3, Tiruchirappalli (12/09/2007)·Deposition of Witness of Periyannan·Statement/Affidavit of Periyannan ·Deposition of Witness of Periyannan·Public Notice before the Judicial Magistrate No. III of Tiruchirappalli·Public Notice before the Judicial Magistrate No. III of Tiruchirappalli·Document sent to Mr N Periyannan from the Corporation Health Officer of Tiruchirappalli Corporation (10/7/2007)·‘Vakkalatha Nama’ before the Judicial Magistrate No. III of Tiruchirappalli ·‘Vakkalatha Nama’ before the Judicial Magistrate No. III of Tiruchirappalli ·Bank document (2/8/2007).2.On 31 December 2020, the Tribunal received the following documents by email:·Document by Municipal Administration & Water Supply Department from Dr M Yazhini M.B.B.S, D.P.H, E.I.S (City Health Officer, Tiruchirappalli) to Public Information Officer (Tiruchirappalli City Corporation, Tiruchirappalli) (29/12/2020)·Document by Municipal Administration & Water Supply Department from S.N. Shanmugam (Public Information Officer and Assistant Commissioner (Per) (i/c), Tiruchirappalli City Corporation, Tiruchirappalli to Thiru. N. Periyannan (S/o Natesan, No. 22, Akila Nagar, Thiruvanaikovil, Tiruchirappalli – 5).ATTACHMENT C – Migration Act 1958 (extracts)5Interpretation(1)In this Act, unless the contrary intention appears:bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a) purports to have been, but was not, issued in respect of the person; or(b) is counterfeit or has been altered by a person who does not have authority to do so; or(c) was obtained because of a false or misleading statement, whether or not made knowingly.97InterpretationIn this Subdivision:application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).Note:Bogus document is defined in subsection 5(1).98Completion of visa applicationA non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.99Information is answerAny information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.100Incorrect answersFor the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.103Bogus documents not to be given etc.A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).107Notice of incorrect applications(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:(a) giving particulars of the possible non‑compliance; and(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:(i)if the holder disputes that there was non‑compliance:(A)shows that there was compliance; and(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or(ii)if the holder accepts that there was non‑compliance:(A)give reasons for the non‑compliance; and(B)shows cause why the visa should not be cancelled; and(c) stating that the Minister will consider cancelling the visa:(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or(ii)if the holder gives the Minister a written response within that period—when the response is given; or(iii)otherwise—at the end of that period; and(d) setting out the effect of sections 108, 109, 111 and 112; and(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and(f) requiring the holder:(i)to tell the Minister the address at which the holder is living; and(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.(1A)The period to be stated in the notice under subsection (1) must be:(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or(b) otherwise—14 days.(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:(a) visas of a stated class; or(b) visa holders in stated circumstances; or(c) visa holders in a stated class of people (who may be visa holders in a particular place); or(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.108Decision about non‑complianceThe Minister is to:(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.109Cancellation of visa if information incorrect(1)The Minister, after:(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and(c) having regard to any prescribed circumstances;may cancel the visa.(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

Ratio Decidendi

Legal Principle Established

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